Computers, Privacy & the Constitution

What Happens in Vegas, Stays in . . . a Government Hard Drive?

-- By MadhuPocha - 27 Mar 2008

Few people have heard of Jeff Jonas, a man whose work has helped transform Las Vegas into an urban panopticon. Jonas created NORA – Non-Obvious Relationship Awareness – as a way to help casinos detect cheaters who were using aliases or colluding with casino employees. In addition to thousands of cameras, RFID tags embedded in casino chips, and facial recognition software, NORA represents another layer of surveillance that threatens privacy rights far beyond the casino doors of Las Vegas.

The constant monitoring and tracking of gamblers and revelers has caught the eye of the federal government. Jonas began sharing NORA with the Pentagon in 2002 and other technologies used by Vegas casinos have also been acquired by the military and federal agencies. More alarmingly, constant surveillance has produced a treasure trove of data on the nearly 40 million people who visit Vegas every year. The government has shown in an interest in acquiring such information, and has even demanded, as the FBI did in 2003, for access to customer data collected by casinos, rental-car agencies, and airlines. Most companies capitulated in December 2003, when the FBI alleged that there was a credible threat of a terrorist attack, but the data notably produced no leads.

The triangulation between entrepreneurs and inventors like Jeff Jonas, companies involved in the entertainment industry in Vegas and beyond, and federal government agencies makes protecting individual privacy rights both more difficult and more imperative. However, the Supreme Court’s privacy jurisprudence under the Fourth, Fifth, and Fourteenth Amendments offers uncertain support for limiting the surveillance activities of Vegas casinos or halting future efforts by the government to obtain private data collected for entertainment-related purposes. We must then push for (1) a resurrection of the Ninth Amendment, and (2) legislative action.

As a threshold matter, the Ninth Amendment may present a way to avoid the state action requirement that often precludes limiting the surveillance activities of private entities. No where does the text refer to the state; the Amendment operates more like a savings clause that protects the unenumerated rights retained by the people. Even if a general right of privacy is not encompassed by the text, at least control over data collected in relation to one’s lawful leisure pursuits (in Vegas or elsewhere), should be a privacy right protected against infringement by private and government entities. This is “the right to be let alone” that Justice Goldberg refers to in his concurring opinion in Griswold (quoting Justice Brandeis). Framed in this way, the unauthorized sharing of customer data with the government, and even certain private surveillance activities, would be sufficient to violate the Ninth Amendment.

On the other hand, the state action requirement could be read into the Ninth Amendment. Justice Goldberg never indicated that the amendment applied to private parties, and his opinion focuses mostly on the role the amendment plays in protecting individual rights from abridgment by state and federal government. If state action is necessary, then the sharing of information between Vegas casinos and federal agencies might be insufficient to establish a claim.

The bigger problem is that the Ninth Amendment has been largely ignored since Griswold as a means for protecting privacy rights. And the current composition of the Court does not suggest that a change of direction is likely. Despite the reasonableness of trying to give full effect to every part of the Constitution, any litigation strategy built around the Ninth Amendment is likely to face judicial opposition.

Thus, litigation efforts to give the Ninth Amendment full force must be accompanied by efforts to secure more comprehensive privacy legislation - something akin to a Privacy Bill of Rights. The need for legislation is particularly strong given the lack of rules for the use of surveillance technologies by entertainment companies. Admittedly, there are some state and federal regulations in place, but the current legal regime provides no assurance, for example, against the type of data sharing with the government that occurred in Vegas in 2003. Legislation could be used to closely regulate how and when entertainment companies may monitor customers and share data with the government. At the very least, legislation should prohibit federal agencies from forcing private entities to share data without a search warrant. It is also critical that such legislation permit private damages against companies that sell or share customer data to the government. This would be a beneficial enforcement tool (in addition to civil and criminal penalties), especially if treble damages are possible.

Although these reforms may be politically difficult to achieve, Britain’s Data Protection Act of 1998 provides an example of the bare minimum that is possible. The Act created a centralized regulatory structure for monitoring the use of surveillance technologies in public spaces, and it set guidelines for safeguarding the public from inappropriate use of their video images. Much more is needed in the U.S., but the adoption of a coherent national policy for regulating video and other forms of private surveillance is a necessary starting place for further restrictions, such as penalties for the misuse of surveillance and prohibitions against the sharing of data with the government.

The likelihood of legislation to expand privacy rights or successful privacy and autonomy claims under the Ninth Amendment is uncertain, but this is why a two-fold approach is necessary. While the courts might not be inclined to give full effect to the Ninth Amendment, Congress might be convinced to do so (or at least partially). And though litigation success seems unlikely, it could help galvanize national support for comprehensive privacy legislation. Ultimately, I am not optimistic that all of the needed privacy protections will come about through judicial and legislative action at this time. But it is clear that we must do more to raise the public’s awareness of the dangers we face when we are at play (and thus least aware of surveillance and its uses by the recipients of our entertainment dollars), and the need for averting ever greater intrusions into our lives by private entities and the government.

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